CONSUMER DEFENSES TO DEBT COLLECTION

By: Lance T. Denha, Esq.

The servicing, buying and selling of debt has become so commonplace that often the original creditor does not retain the account for very long. This is especially true if you have fallen behind on payments. Collectors and businesses you have never heard of or been involved with suddenly barrage you with telephone calls and letters.

Often, these calls and letters contain no information that will enable you to identify the debt, such as the name of the original creditor and account number. This makes it nearly impossible to determine whether the amount sought is correct, or if the debt is even valid. In addition, it’s seldom clear who you are dealing with: is it a bill collector working for a creditor or an actual creditor? That distinction can be important under federal debt collection law.

If you find yourself faced with this scenario, what can you do to dispute the debt when a creditor or debt collector has failed to provide you with supporting documentation verifying the debt? Both federal and state laws provide some options, depending on whether you have been sued or not.

VERIFICATION OF DEBT

If you are contacted by a debt collector, the Fair Debt Collection Practices Act (FDCPA), and many state debt collection statutes provide you with an important tool: the verification letter. Under the FDCPA, if you send the bill collector a letter that disputes the debt and/or requests verification of the debt within 30 days of receiving the initial written notice of the debt, then that bill collector must:

• immediately stop its collection activity, and

• send you information verifying the debt, such as an account statement.

The debt collector cannot continue its collection efforts against you until it verifies the debt. There is no time limit for the debt collector to respond, however until the debt collector responds, they cannot resume collection efforts.. For instance, if six months have passed since you requested the verification, the collector cannot just resume calling or writing you to demand payment.

While some federal courts have held that this verification requirement does not mean that the creditor has to keep a file on that debt, at a minimum you are entitled to:

• a description of the amount owed, and

• the name and address of the original creditor.

It’s important to understand the difference between a debt collector and a creditor. The federal verification obligation does not apply in instances where the creditor is the one trying to collect a debt from you. However, according to the Federal Trade Commission, a business that buys delinquent accounts from original creditors and then attempts to collect on these accounts is a “debt collector” for purposes of the FDCPA, even if it doesn’t hire someone else to do its collections work. For example, if the entity contacting you holds itself out as the creditor but is in the business of buying old delinquent credit accounts and then collecting on them in-house, then it is subject to the debt verification rule.

If a debt collector fails to verify the debt but continues to pursue collection efforts then you have the right to sue that debt collector in federal or state court. You may be able to get $1,000 per lawsuit, plus actual damages, attorney’s fees, and court costs. Under some state fair debt collection acts, you can get more than $1,000 in statutory damages.

The debt collector may be able to shield itself from liability if it is able to prove that its acts and omissions were unintentional and in error. However, it will have to show that it had a procedure in place to prevent the situation from happening.

WHEN YOU ARE SUED: GETTING DOCUMENTATION OF THE DEBT

If a debt collector sues you, most state and local procedural rules place rather onus documentation requirements on both the debt collector and creditor. In many states, a creditor or debt collector that is suing for collection of an account must:

• attach to the complaint a copy of the account or written contract or agreement, or

• state in the complaint why the account or document is not attached.

This is often referred to as the “attachment rule.”

If the creditor or debt collector doesn’t do this, you may be able to get the lawsuit dismissed. Or, you can ask the court to require the creditor or debt collector to provide the missing documentation and information. This is often called “requesting a more definite statement.” In either case, you’ll have to prepare and file a formal motion with the court.

WHAT DOCUMENTATION MUST THE CREDITOR PROVIDE?

But what must the creditor provide by way of documentation? At a minimum, it must produce:

• A copy of the original written agreement between the parties, such as the loan note or credit
card agreement, preferably signed by you.

• If the account has been sold to another creditor, then that creditor must prove that it has the right to sue to collect the debt. This usually means producing proof that the debt was assigned to it. Often such proof will be a bill of sale, an “assignment”, or a receipt between the last creditor holding the debt and the entity suing you.

What If the Collector Cannot Produce the Assignment? If the creditor or collector suing you fails to produce proof of the assignment, then you can ask the court to dismiss the lawsuit. Again, you’ll have to prepare and file a formal motion with the court.

COUNTERCLAIMS IF THE COLLECTOR DID NOT PREVIOUSLY VERIFY THE DEBT

If the debt collector suing you previously did not verify the debt after you timely requested debt verification, you may file a counterclaim against that debt collector within the same lawsuit, requesting damages. Some states also allow you to countersue for damages against the creditor itself for failure to verify the debt. Some states also allow you to countersue for damages, including actual damages, punitive damages, and costs of litigation, against the creditor itself for failure to verify the debt.